Citation Nr: 1209955
Decision Date: 03/16/12 Archive Date: 03/28/12
DOCKET NO. 10-12 563 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for gout.
2. Entitlement to service connection for eye floaters.
3. Entitlement to service connection for a bilateral hearing loss disability.
4. Entitlement to service connection for tinnitus.
5. Entitlement to service connection for parasites and ova.
6. Entitlement to service connection for residuals of catarrhal fever.
7. Entitlement to service connection for sinusitis or other respiratory disorder.
8. Entitlement to service connection for hypertension.
9. Entitlement to service connection for atherosclerotic heart disease with pacemaker.
10. Entitlement to service connection for benign prostatic hypertrophy.
11. Entitlement to service connection for eczema and urticaria.
12. Entitlement to an increased (compensable) rating for residuals of typhus fever.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. Fetty, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2011).
The Veteran performed active military service from November 1942 to June 1948.
This appeal arises to the Board of Veterans' Appeals (Board) from a May 2009-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied service connection for gout, a cervical rib, a spot in the eye claimed as a floater, a bilateral hearing loss disability, tinnitus, parasites with ova, catarrhal fever, sinusitis or other respiratory disorder, chronic obstructive pulmonary disease and lung nodules, hypertension, atherosclerosis with pacemaker, benign prostatic hypertrophy, diabetes mellitus, and for eczema and urticaria. The decision also denied an increased (compensable) schedular rating for residuals of typhus fever and for left inguinal hernia repair scar. The decision also denied special monthly compensation based on aid and attendance and housebound status. The decision also determined that new and material evidence had not been submitted to reopen claims for service connection for spinal arthritis, herniated nucleus pulposus, and lymphangitis. The Veteran submitted a notice of disagreement (hereinafter: NOD) to all denials except the denial of a compensable rating for a hernia scar, service connection for a back condition, and service connection for lymphangitis. Thus, those three issues are not on appeal.
The RO subsequently issued a statement of the case (hereinafter: SOC). The Veteran's VA Form 9, Appeal to the Board of Veterans' Appeals, fails to mention all issues addressed in the SOC. Therefore, the RO closed the appeals for service connection for a cervical rib and entitlement to special monthly compensation at the aid and attendance and housebound rate. The Board will therefore not address those issues.
In September 2011, the Veteran withdrew his appeal for service connection for diabetes mellitus. The Board will therefore not address that issue.
The Veteran requested a videoconference hearing before a Veteran's law judge. He was timely notified that a hearing was scheduled for December 5, 2011. Information in the claims file reflects that he failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. The Veteran has not explained his failure to report or requested rescheduling of the hearing. The request for a hearing is therefore considered to be withdrawn pursuant to 38 C.F.R. § 20.702(d).
Service connection for a bilateral hearing loss disability, tinnitus, residuals of catarrhal fever, sinusitis, other respiratory disorders, and eczema and urticaria are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's Service Treatment Reports (STRs) do not reflect any treatment for gout, parasites and ova, hypertension, atherosclerotic heart disease, or benign prostatic hypertrophy.
2. Gout, parasites and ova, hypertension, atherosclerotic heart disease, or benign prostatic hypertrophy did not arise for many years after active military service.
3. The Veteran has not alleged continuity of symptoms of gout, parasites and ova, hypertension, atherosclerotic heart disease, or benign prostatic hypertrophy dating back to active military service.
4. Competent medical evidence does not dissociate eye floaters from service-connected typhus fever.
5. There has been no symptom of active typhus fever during the appeal period.
CONCLUSIONS OF LAW
1. Gout, parasites and ova, and benign prostatic hypertrophy were not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011).
2. Hypertension and atherosclerotic heart disease were not incurred in active military service, nor may either be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2011).
3. The requirements for service connection for eye floaters, secondary to service-connected typhus fever, are met. 38 U.S.C.A. §§ 1110, 1137, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp, 2011); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011).
4. The criteria for a compensable schedular rating for residuals of typhus fever are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.88b, Diagnostic Code 6317 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the notice provided in July 2008 addresses the rating criteria and effective date provisions that are pertinent to the claims.
VA also has a duty to assist the claimant in the development of the claims. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether VA must provide a VA medical examination or medical opinion, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c) (4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
With respect to the third factor above, the Court has stated that this requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service (a low threshold). Evidence that indicates that a disability "may be associated" with military service includes, but is not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In this case, an examination is not needed to determine the etiology of gout, internal parasites and ova, hypertension, atherosclerotic heart disease, and benign prostatic hypertrophy. Although there is competent evidence of a current disability with respect to these issues, there is no evidence establishing that a relevant event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period. There is no indication that these disabilities or symptoms may be associated with active service or with another service-connected disability and there is sufficient competent medical evidence of record to make a decision on the claims.
All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private treatment reports. The claimant was afforded a VA medical examination in August 2008. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).
Service Connection
Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2011).
Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).
In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509.
Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a).
"Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a Veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as arteriosclerosis, hypertension, and cardiovascular/renal disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1113, 1137 (West 2002); 38 U.S.C.A. § 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011).
Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration.
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448.
38 C.F.R. § 3.310 was amended effective October 10, 2006. The revised § 3.310(b) provides the following:
Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.
The amendment places a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made.
Factual Background
The Veteran's enlistment examination report notes a mild left varicocele, but no other relevant abnormality at enlistment in November 1942. The STRs reflect that in February 1943, he was treated for typhus fever and had several days of body temperature of over 104 degrees. A macula-like rash had also appeared on the body.
In May 1944, the Veteran was treated for catarrhal fever and for lymphangitis. A red streak had appeared on the right forearm, followed by an infection of the right thumb and axillary adenopathy. He was treated and recovered.
In May 1945, a left indirect inguinal hernia was repaired and a marked left varicocele was noted. In April 1947, he was treated for a severe attack of urticaria on the hands, forearms, feet, chest, and waistline. The palms, hands, and plantar surfaces were grossly swollen and pink. Pinkish-white welts covered the forearms, waistline, and chest. Welts on the thighs appeared. He was treated and recovered to full duty.
In June 1948, the Veteran was examined and found fit for discharge. His sinuses were noted to be normal. His hearing was normal on spoken voice, whispered voice, and coin click. The skin and spine were normal. The respiratory and cardiovascular systems were normal.
Post-service private treatment records reflect treatment in 1951 and 1952 for low back pain with herniated nucleus pulposus and scoliosis. Amoebic dysentery was discovered in March 1951, while working in Formosa. An accessory cervical rib was discovered in December 1951.
In July 1952, the RO granted service connection for residuals of typhus fever and for a left herniorrhaphy and assigned noncompensable ratings for each. The RO denied service connection for a back condition and for residuals of lymphangitis.
In June 2008, the Veteran requested service connection for spinal arthritis with herniated nucleus pulposus, a cervical rib, tinnitus, hearing loss disability, internal parasite eggs recently found, urticaria and eczema, catarrhal fever, right thumb lymphangitis, left varicocele, and for increased ratings for repair of left inguinal hernia and residuals of typhus fever. He also requested special monthly compensation at the housebound and aid and attendance rate.
The RO obtained VA out-patient treatment reports. These reflect recent treatment for gout, hypertension, diabetes mellitus, lung granulomas, bladder outlet obstruction, old myocardial infarction, ischemic cerebro-vascular disease, ischemic heart disease, depressive disorder, and arrhythmia, among others.
In August 2008, the Veteran claimed that he was exposed to ionizing radiation on January 1, 1946, in Nagasaki, Japan. He did not allege that any disability arose as a result of that exposure, however.
During a compensation examination in August 2008, the Veteran reported floaters in the eyes. The diagnoses included typhus fever with current floaters in the eyes. The physician admitted that the relationship between floaters and typhus fever was speculative, as there had been no clinical trials to confirm such a relationship. The physician did not, however, dissociate the eye floaters from typhus fever.
In March 2010, a private physician reported that the Veteran had several superficial skin cancers removed and that he currently had chronic disseminated superficial actinic parakeratosis of the lower legs.
In February 2011, the Veteran cancelled a VA compensation examination for skin diseases because he was unable to travel any distance that day. In April 2011, the Veteran's VA physician reported that the Veteran had been hospitalized for Parkinson's, atrial fibrillation, pneumonia, and worsening congestive heart failure.
Gout
With respect to service connection for gout, the STRs do not reflect any relevant treatment, gout is not noted to have arisen for many years after active military service, and the Veteran has not alleged continuity of symptoms dating back to active military service.
After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for gout is therefore denied.
Eye Floaters
With respect to eye floaters, in August 2008 a VA physician linked the Veteran's eye floaters to residuals of typhus fever. The physician admitted that this medical nexus was speculative, as no clinical studies have been performed in this area. Although the opinion is speculative, it is nonetheless significant because the physician found no medical reason, such as intercurrent causation, to dissociate the eye floaters from typhus fever.
The above-mentioned medical opinion is persuasive, as it is based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The medical evidence is therefore in relative equipoise on this issue.
After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for eye floaters, secondary to service-connected typhus fever, will therefore be granted.
Parasites and Ova
The STRs reflect no relevant complaint or treatment. In 1951, the Veteran was treated for amoebic dysentery while working at his civilian job in Asia. Thus, it appears that his claim for service connection stems from that infection. Because amoebic dysentery arose over three years after active military service, and because the Veteran has not alleged continuity of symptoms dating back to active military service, there is no basis to find a link between this disease and active service.
After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for parasites and ova is therefore denied.
Hypertension and Atherosclerotic Heart Disease
With respect to service connection hypertension and/or atherosclerotic heart disease, the STRs do not reflect any relevant complaint or treatment. There is no evidence or even an allegation that these chronic diseases arose within a year of separation from active service. The Veteran has not alleged continuity of symptoms dating back to active military service.
After considering all the evidence of record, the Board finds that the preponderance of it is against the claims. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for hypertension and atherosclerotic heart disease must therefore be denied.
Benign Prostatic Hypertrophy
The STRs do not reflect any relevant treatment and benign prostatic hypertrophy did not arise for many years after active military service. The Veteran has not alleged continuity of symptoms dating back to active military service.
After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for benign prostatic hypertrophy is therefore denied.
Compensable Rating for Residuals of Typhus Fever
Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7.
Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007).
Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).
The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).
The Veteran was examined for typhus fever residuals in August 2008. The examiner noted that the Veteran had no current typhus symptom. There was no evidence of malnutrition, vitamin deficiency, or infection. The Veteran did not allege any current symptom.
The above-mentioned medical report is persuasive, as it is based on accurate facts and is supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value).
Residuals of typhus fever have been rated noncompensable under Diagnostic Code 6317. Under Diagnostic Code 6317, typhus, or scrub, is rated 100 percent when an active disease is discovered. The 100 percent rating is continued during the active disease and a 100 percent rating is allowed during three months convalescence after the active disease. Thereafter, the residual skin condition or other residual, such as spleen damage, is rated under an appropriate code. 38 C.F.R. § 4.88b, Diagnostic Code 6317 (2011). There has been no manifested symptom of typhus during the appeal period. Thus, the criteria for a compensable rating have not been more nearly approximated.
After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. A compensable schedular rating for residuals of typhus is therefore denied.
The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected typhus fever exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra.
Extraschedular Consideration
The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Court added a three-part test for triggering extra-schedular ratings in Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, in Thun v Shinseki, 572 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.
Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record does not reasonably raise the question of unemployability, nor has the claimant raised this issue.
In this case, residuals of typhus fever are not shown, or alleged, to cause such difficulties as marked interference with employment or to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. See also VAOPGCPREC. 6-96.
ORDER
Service connection for gout is denied.
Service connection for eye floaters, secondary to typhus fever, is granted.
Service connection for parasites and ova is denied.
Service connection for hypertension is denied.
Service connection for atherosclerotic heart disease with pacemaker is denied.
Service connection for benign prostatic hypertrophy is denied.
A compensable rating for residuals of typhus fever is denied.
REMAND
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.
Bilateral Hearing Loss Disability and Tinnitus
The Veteran's STRs reflect that he was offered voice and coin-click hearing tests at separation from active military service. The Veteran has not been offered a VA audiometric evaluation to determine the nature and etiology of his claimed hearing loss disability and tinnitus, although in August 2008 a VA examiner remarked that the Veteran could hear normal conversation in the examining room. Under these circumstances, VA's duty to assist includes offering an examination. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Residuals of Catarrhal Fever; Sinusitis; Other Respiratory Disorders
The STRs reflect treatment for catarrhal fever. VA out-patient treatment reports note current lung and respiratory disabilities. A VA compensation examination report of August 2008 does not address this claim. VA's duty to assist includes offering an examination to determine the nature and etiology of any current respiratory disability. 38 U.S.C.A. § 5103A; McLendon, supra.
Eczema and Urticaria
The STRs reflect treatment for eczema and urticaria. The Veteran was offered a VA dermatology compensation examination to determine the nature and etiology of any current skin lesion, but he was hospitalized or otherwise disabled at the time and could not attend. Under these circumstances, VA should offer the Veteran another examination.
Accordingly, the case is REMANDED for the following action:
1. The AMC should make arrangements for an examination to determine the nature and etiology of the claimed hearing loss disability and tinnitus. The claims file should be made available to the examiner for review. The examiner is asked to review the claims file, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis, if forthcoming. For each diagnosis offered, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to active military service.
The examiner should offer a complete rationale for any conclusion in a legible report. If any question cannot be answered, the examiner should state the reason.
2. The AMC should make arrangements for an examination to determine the nature and etiology of the claimed residuals of catarrhal fever; sinusitis; or other respiratory disorders. The claims file should be made available to the examiner for review. The examiner is asked to review the claims file, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis, if forthcoming. For each diagnosis offered, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to active military service.
The examiner should offer a complete rationale for any conclusion in a legible report. If any question cannot be answered, the examiner should state the reason.
3. The AMC should make arrangements for an examination to determine the nature and etiology of the claimed eczema and urticaria. The claims file should be made available to the examiner for review. The examiner is asked to review the claims file, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis, if forthcoming. For each diagnosis offered, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to active military service. If the answer is no, then the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) proximately due to or chronically worsened by service-connected residuals of typhus.
The examiner should offer a complete rationale for any conclusion in a legible report. If any question cannot be answered, the examiner should state the reason.
4. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claims. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause, may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2011). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs